receive, or on the part of the citizen to pay compensation for the services.

We cannot say, looking to the facts stated in this answer, that there was an implied contract on the part of the company to pay Lee compensation for his services. The further proposition is urged by the counsel for the company, that even an express agreement to pay would have been void as contrary to public policy. But upon that question we express no opinion. We hold the answer to be sufficient, and hence that it was error to sustain a demurrer thereto. The judgment will be reversed and the cause remanded for further proceedings Judgment reversed.

[This case will appear in 37 O. S.J

INJUNCTION-CONTEMPT-JUDGMENTATTORNEYS' FEES.

SUPREME COURT OF OHIO.

HENRY DIEHL

V.

C. F. FRIESTER.

January 24, 1882.

the

1. Where a probate judge allowed an injunction in a cause pending in the court of common pleas, but an undertaking therefor was never given, a fine, with imprisonment for its non-payment, imposed upon party enjoined, for an alleged contempt in disregarding such injunction, is not authorized by law; and where the person so imprisoned brings an 8Ction for such injury against the party causing the imprisonment, it is not necessary, to allege malice and want of probable cause.

2. A motion that one judgment be set off against another is an appeal to the equitable power of the court, to be granted or refused upon consideration of all the facts; and in granting such motion, the claim of the attoneys for fees will be respected, wherever it appears to be right, in view of the facts, that this should be done.

Error to the District Court of Monroe County. Spriggs & Driggs, for plaintiff in error. Hunter & Mallory, for defendant in error. OKEY, C. J.

Diehl brought suit against Friester in the Court of Common Pleas of Monroe County. The action was prosecuted on promissory notes and a real estate mortgage to secure their payment, executed by Friester to Diehl; the prayer was for a judgment and a sale of the land to satisfy the same; and at the December term, 1877, judgment was rendered for $1,442.50 and costs, and such order of sale was made. On November 17, 1877, while the it was pending, Diehl obtained from the probate court of that county an injunction in the action, to restrain Friester from doing certain acts with respect to the property, and Friester was served with a copy of such order of the probate court; but no undertaking for such injunction was ever executed. On November 22, 1877, upon affidavit of Diehl that Friester was violating the injunction, the probate court caused the latter to be arrested, assessed against him a fine of ten dollars and costs as for a contempt for disobeying the injunction, and

in default of the payment of such fine and costs, he was, by order of such probate court, committed to the county jail, where he was confined for thirty days. Thereupon, Friester brought suit against Diehl in the Court of Common Pleas of Monroe County, for false imprisonment, based on the above facts, and at the June term, 1878, of that court, obtained a verdict and judgment for $245, and costs. At the same term Diehl showed to the court that the mortgaged premises had been sold in pursuance of the order of the court, and the proceeds applied in part satisfaction of the mortgage debt, leaving a balance of $1,092.18, on his aforesaid judgment; and thereupon he moved the court that so much of his judgment as would equal the judgment of Friester should be set off against the same in satisfaction thereof. This motion was sustained as to the sum of $145.00, and no objection has been made to the order in this respect, but the court denied the motion as to the remaining sum of $100.00, which portion of the Friester judgment the court by its order allowed to Hunter & Mallory, who prosecuted, as attorneys for Friester, the suit for false imprisonment; and the judgment and orders were affirmed in the District Court. This petition in error was filed by Diehl to reverse the judgment in favor of Friester, and to reverse so much of the order as denied to Diehl a set off with respect to said sum of $100.00.

1. As to the sufficiency of the petition. It contains in detail the facts as to the suit of Diehl against Friester, the application of Diehl for an injunction, the allowance of the injunction, the application for and issuing of an attachment, and the arrest, assessment of fine, and imprisonment of Friester; and it contains, furthermore, an allegation that no undertaking was ever given for the injunction, but none that such prosecution for contempt was malicious and without probable cause.

In trespass for false imprisonment the gravamen is the unlawful act of the defendant. Case for malicious prosecution may be maintained where a proceeding is carried on maliciously and withWhile an action for maliout probable cause. cious prosecution may be maintained, notwithstanding the plaintiff was imprisoned upon a perfectly valid judgment or order, an action for false imprisonment cannot be maintained, where the wrong complained of is imprisonment in accordance with the judgment or order of a court, unless it appear that such judgment or order is void. And this distinction is as important now as under the former practice. Spíce v. Steinruck, 14 Ohio St. 213.

This is an action for false imprisonment. If Friester was imprisoned in pursuance of a valid judgment and order, the petition does not contain facts sufficient to constitute a cause of action, and the judgment must be reversed. But in our opinion the judgment and order for imprisonment were void, for the reason that Diehl never gave the undertaking for the injunction required by the statute, (Civil Code §§ 242, 245,

247; Rev. Stats. §§ 5576, 5579, 5581), and hence that the petition is sufficient.

This is not a case where a party, upon being informed that an injunction has been allowed to restrain him from doing a particular act, does the act before there is time to give such undertaking. What if any power the probate court has in a case of that sort to punish for contempt, is a question which we need not determine.

2. Did the court err in holding that Hunter & Mallory should be preferred to Diehl as to $100.00, of the Friester judgment, and that as to this amount the set off should be refused?

The provisions of the statute relating to set off do not in terms apply to the set off of one judgment against another on motion (Civil Code, §§ 26, 93, 97-99, 119; Rev. Stat. §§ 4993, 5071, 5075-5077, 5089), though doubtless those provisions will be applied whenever they are in their nature applicable to such motions. As the court say in Holmes v. Robinson, 4 Ohio, 90, "the practice of setting off one judgment against another, between the same parties, and in the same right, is ancient and well established." Even the fact that the judgments are in different courts, one for a tort and the other on contract, and some of the parties in one case were not parties in the other, does not necessarily afford an insuperable objection to such set off. But as Gibson, C. J. observes (Ramsey's Appeal, 2 Watts. 230), there is a fallacy in supposing that such set off is a legal right. "Judgments are set off against each other," said he, "not by force of the statute, but by the inherent power of the court immemorially exercised. **•* An equitable right of setting off judgments, therefore, is permitted only where it will infringe on no other right of equal grade." And see Love v. Freer, Wright, 412. "Such power," said Devens, J., in Ames v. Bates, 119 Mass. 397, "is only to be exercised upon careful consideration of all the circumstances of the transaction out of which the judgments arise, and in order to protect the just rights of parties." "The privilege of setting off judgments," said Coleridge, J., in Simpson v. Lamb, 40 Eng. L. & Eq. 59, 7 E. & B. 84, "is not an inherent incident of the suit, but is given by permission of the court, with reference to all the circumstances of the transaction." And it has been recently held that where the set off is sought by motion, the matter so far rests in the discretion of the court that the refusal of an order for such set off will not be reviewed on error. Chipman v. Fowle, 130 Mass. 352.

Guided by this view of the law, courts have refused to order such set off where by granting it the just rights of assignees would be disturbed. Ramsey's Appeal, supra. So,it has been repeatedly held that where a debtor is entitled to hold a judgment as property exempt from execution, the object of the law being, not to exonerate the debtor from the payment of his debts, but "to protect his family" (Sears . Hanks, 14 Ohio St. 298, 301), a set off as to such judgment will not be ordered. Curlee v. Thomas, 74 North Car. 51;

Duft v. Wells, 7 Heiskell, 17; Wilson v. McElroy, 32 Penn. St. 82; Beckman v. Manlove, 18 California, 388. And see Comer v. Dodson, 22 Ohio St. 622; McConville v. Lee, 31 Ohio St. 447; Rev. Stats. §§ 5433, 5441; Thompson on Exemp. § 893. And it has likewise been held in many cases, that a judgment will not be set off against another judgment, to the prejudice of an attorney who contributed by his skill and services in obtaining it. Simpson v. Lamb, supra; Johnson v. Taylor, 1 Disney, 169; Ames ". Bates, supra; Carpenter v. Sixth Av. Ry. 1 Am. L. Reg. N. S. 410, 424; Perry v. Chester, 53 N. Y. 240; Zogbaum v. Parker, 55 N. Y. 399.

Although an attorney may contribute his skill and services in obtaining a judgment for his client, he has, in this State, no lien on such judgment for his fees, where there is no agreement for such lien known to the judgment debtor, in the sense that such judgment debtor may not effectually satisfy such judgment by payment of the amount thereof to the judgment creditor; nor do we doubt the right of parties to compromise any pending suit, in opposition to the wish of their attorneys. But on the other hand, an attorney may have a claim upon the fruits of a judgment or decree which he has assisted in obtaining, or upon a sum of money which he has collected, and under some circumstances courts will aid him in securing or maintaining such claim. Thus he will be protected in retaining his fee out of money which he has collected for his client. (Longworth v. Handy, 2 Handy, 75.) He will be protected in his claim as attorney on a fund in the hands of a receiver (Olds v. Tucker, 35 Ohio St. 581), or in court. (Ingham v. Lindemann, ante, 218.) This protection, it will be seen from the cases cited, will be afforded in many other cases. And why should not Hunter & Mallory be protected to the same extent as if Diehl had paid the money into court? The motion for set off was, as we have seen, an appeal to the equitable power of the court, and where such appeal is made, the court looks not merely to the form the transaction is made to assume, but to its substance. The attorneys contributed, undoubtedly, in obtaining the judgment. The court may have properly charged, under authority of Finney v. Smith, 31 Ohio St. 529; Stevenson v. Morris, ante, 10, that if the jury found that Diehl was actuated by malice in causing Friester's arrest and imprisonment, they might, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action. If such was the fact, and attorney's fees were thus included in the verdict and judgment, upon what principal could Diehl be entitled to them to the exclusion of the attorneys, who had not been paid?

Finally, it is said that the attorneys did not claim an allowance by the court of such fee, and that the fee was allowed without evidence. But we do not think this view is warranted. The record does not contain the evidence, nor does it, in terms, show any application for such allow

ance. But error will not be presumed. The cases were both tried in the same court, and doubtless before the same judge. The record shows that nothing could be collected from Friester by process, and it may properly be assumed that when the motion for set off was presented, Hunter & Mallory suggested to the court that they had not been paid their fees, and that the only way they could secure compensation was by an allowance out of the Friester judgment. While the record does not show what evidence was offered as to the value of their services, the proof was no doubt satisfactory to the court; and, besides, as held in Ingham v. Lindemann, supra, the amount was in some degree to be determined by the judge before whom the services were rendered from his own knowledge of their value. Perhaps, indeed, there was an agreement between Friester and his attorneys as to the amount of the fee and its lien, and that this was shown to the court. However that may be, we hold that in any view there was no error in the courts below of which Diehl can complain. Judgment affirmed.

[This case will appear in 37 O. S.]

AGENCY-INNOCENT PARTIES.
SUPREME COURT OF OHIO.

HERMAN NOLTE, ET AL.,

v.

WILLIAM P. HULBERT, TRUSTEE.

JANUARY 24, 1882.

8. brought suit against N. and others to obtain a sale of land to satisfy a judgment lien thereon. To this suit H. was made a party defendant, who, upon receipt of summons, gave to C., his regular attorney, certain notes endorsed by him in blank, together with a mortgage upon the land to secure the same, for collection.

C. caused a cross-petition to be filed on behalf of H., setting up his mortgage lien. The court, upon trial, ordered the land to be sold to satisfy the liens of S. and H. Pending the suit, H. agreed,with N. to extend the note for a year from the time when it fell due. Before the time so extended had expired, N., fearing that the land would be sacrificed, employed a broker who applied to C. to find a purchaser at private sale. C. went to J. S. and offered him the land for $3500,00, telling him of the mortgage and saying that he had in his possession all the papers necessary to make a clear title. J. S. paid him the money and directed him to pay off all the claims upon the land, including the mortgage of H. and to obtain H.'s cancellation of the mortgage upon his return, he being then absent. C. paid the costs and the claim of S. but embezzled the remainder of the money.

Held: That under this state of facts, C. acted as the agent of J. S., to make payment to H., and not as the agent of H. to receive payment from J. S.; and that, as between the two innocent parties, the loss must be borne by J. S.

Error to the Superior Court of Cincinnati.

The action in the Court below was brought by William P. Hulbert, trustee of Julia Harbeson, against Herman Nolte and others to foreclose a mortgage securing certain notes held by him against Nolte. The mortgaged property had been conveyed by Nolte to Seasongood and by him to Dallas. These latter were both made parties defendant to the suit.

The facts of the case, as disclosed by the record, were as follows:

On January 18th, 1872, Nolte delivered to Hulbert his note for $2,500, to secure a loan of that amount, together with certain interest notes, the whole secured by mortgage upon city property. The principal note was due in two years after date.

In August, 1873, one Steineke, a judgment creditor of Nolte, brought suit against Nolte to obtain a sale of the mortgaged land to satisfy his judgment lien and for other relief. To this suit Hulbert was made a party defendant. On receipt of summons he sent for Charles Cist, his regular attorney in such matters, and handed to him the summons together with the notes endorsed in blank and the mortgage, and took his receipt therefor for collection. A cross-petition was filed on behalf of Hulbert asking that, if the land should be sold to satisfy Steineke's lien, his rights might be protected and his claim satisfied from the proceeds of sale.

While the suit was still pending the principal note became due and Hulbert then agreed with Nolte to extend it for another year. There is no evidence to show whether or no Cist had knowledge of this agreement.

In March, 1874, the case was heard and decided and the land was ordered to be sold. No entry, however, was made upon the minutes.

Nolte, thereupon, fearing that the land would be sacrificed engaged a broker to find a purchaser at private sale. This broker applied to Cist, who went to Seasongood, a capitalist, with whom he had had many dealings of a like character and between whom and himself existed relations of perfect confidence.

Cist offered the land to Seasongood for $3,500, and told him of the incumbrances upon it.. These he agreed to pay off out of the purchase money and to furnish a certificate that the title was clear. He said that he had in his possession all the papers necessary to make a clear title.

Thereupon Seasongood gave to Cist his check for $3,500, the latter agreeing to pay off all the liens upon the property and to obtain from Hulbert a cancellation of the mortgage when he should return to the city.

The land was then conveyed by Nolte and wife to Seasongood.

Cist paid the costs and the Steineke claim but embezzled the remainder of the money and fled the city.

At the trial below in General Term, the case having been reserved, the court found that the facts did not show a payment of Hulbert's claim and that the loss caused by Cist's dishonesty ought to fall upon Seasongood rather than Hulbert and overruled a motion for a new trial.

The proceeding in error is to review this judg

ment.

Thomas McDougall and Jordan, Jordan & Williams for plaintiffs in error.

Hoadly, Johnson & Colston for defendant in

error.

LONGWORTH, J.

The only question before us necessary to a determination of the case is whether, at the time the check was given by Seasongood to Cist, the latter acted as Hulbert's agent to receive payment, or as Seasongood's agent to make payment to Hulbert. This is a question of mixed law and fact.

The maxim that "no man shall serve two masters" does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the same transaction when their interests do not conflict, and where loyalty to the one is not a breach of duty to another.

Thus the doings of Cist as Nolte's agent to procure a purchaser were not inconsistent with his duties to Hulbert as his agent to receive or to Seasongood as his agent to make payment.

The fact, if fact it be, that at the time Cist received the check he had full authority as Hulbert's agent to receive payment would not preclude Seasongood from choosing to deal with him in a different capacity. He might prefer to deal directly with the principal and to receive his receipt rather than that of his agent: and for this purpose to appoint Cist his agent to make payment. He had only Cist's statement that he was Hulbert's agent and was in possession of the notes and mortgage to evidence the fact of such agency. Suppose he had doubted the truth of these statements would it not have been competent for him to direct Cist to make payment to Hulbert and to bring him his (Hulbert's) receipt of satisfaction? Clearly so.

Seasongood testified, "I gave Mr. Cist the money at the time he gave me the deed, May 9th, 1874; the certificate I got after, and I then believed he had paid off the Hulbert mortgage," and further in cross-examination he said, "I took it for granted that he would take the money and pay off the mortgage, I trusted Mr. Cist to make the mortgage payment and get me a clear title."

It is also worthy of note that this was not the only transaction between Seasongood and Cist. They were in the habit of dealing together in matters of this kind. Seasongood in another place says, "I always gave my check to him (Cist) in similar transactions and trusted him to clear the title.

From this it is manifest that at no time did Seasongood understand that when he gave his check to Cist he was paying Hulbert's mortgage; on the contrary, he trusted and expected Cist to make the payment and to obtain for him Hulbert's cancellation.

This conclusion is perhaps strengthened by the circumstance that but one check was given to cover all the several claims, that Cist was Seasongood's agent to pay off the costs in the Steineke suit and the judgment in favor of Steineke is beyond doubt. If he was to act in any other capacity in respect to Hulbert's claim would it not be natural to suppose that separate checks would have been given?

These considerations make it unnecessary to inquire whether Cist actually had authority from Hulbert to receive payment or whether his pos

session of the notes and mortgage would have authorized Seasongood to deal with him as such agent.

We are asked to hold that the mere fact of possession of a note by an attorney will protect the maker who pays to the attorney against the claim of the payee, and Patton v. Fullerton, 27 Maine, 58, is cited in support of the rule claimed. We should not be prepared to subscribe to this doctrine even in a case where the question necessarily arose; nor do we think that Patton v. Fullerton bears it out. In that case the additional and most important circumstance existed that prior partial payments had been made by the debtor to the unauthorized agent, which had been accepted by the creditor. We should long hesitate to hold that a maker of a note may safely pay it to one who has stolen it from the payee and who falsely pretends to hold it for collection in the absence of any other evidence of authority than the bare possession. Yet this is the result of the doctrine as claimed.

True, in the case at bar the notes had been endorsed in blank by Hulbert and had Seasongood relied on this and paid them he would have been safe yet it appears that this fact was never known to him or communicated to him by Cist.

Upon the whole case we are clearly of opinion that Seasongood did not deal with Cist in any manner as the agent of Hulbert or at any time suppose that in delivering to him his check he was paying Hulbert's claim.

We find no error in the judgment of the court below.

Judgment affirmed.

This case will appear in 37 O. S.]

Digest of Decisions.

IOWA.

(Supreme Court.)

BON V. RAILWAY PASSENGER ASSURANCE Co. Oct. 20, 1881.

Accident Insurance.-Plaintiff having an accidental insurance ticket or policy, containing a provision that the "insurance shall only extend to bodily injuries, fatal or non-fatal, as aforesaid, when accidentally received by the insured while actually riding on a public conveyance provided by common carriers for the transportation of passengers in the United States or dominion of Canada, and in compliance with all rules and regulations of such carriers, and not neglecting to use due diligence for selfprotection," was riding upon a train of cars, and as the same approached the station, and while it was slowing up, went out on to the platform. While standing there, owing to a sudden jerk of the train, another passenger was precipitated against him, and he was by reason thereof thrown from the car and severely injured. It was a regulation of the railroad company that passengers should not stand on the platform, and plaintiff was aware of such rule. Held, in an action upon such accident policy, that upon such state of facts verdict should have been ordered for the defendant.

PENNSYLVANIA.

(Supreme Court.)

APPEL ET AL. v. BYERS ET AL. November 7, 1881. Devise.-Testator gave all his real and personal estate after the death of his wife to " my nephew Philip Byers." The jury returned a special verdict, finding that the testator died leaving two nephews, one Philip, son of Martin, legitimate; another Philip, son of Louis, illegitimate; also that the nephew intended by the testator to inherit was Philip, the illegitimate nephew, the son of Louis, and this from evidence aliunde the will and not from the will itself. Held, that there being no ambiguity in the will, and there being only one legitimate nephew, evidence could not be admitted to show that the testator intended his illegitimate nephew, although the name in the will applied as fully to him as to the legitimate nephew.

NELLIS, GARNISHEE, v. COLEMAN, for use. October 31, 1881.

Agreement. Where two men agree that each will loan a third a sum of money, one keeps and the other breaks his promise, no legal principle will enable the lender to compel the other promissor, as garnishee in an execution attachment, to pay what he had promised to loan to said third person.

UNITED STATES COURTS.

CONNER V. LONG. (Supreme Court of the United States.) December, 1881.

Conversion-Sheriff-Attachment-Bankruptcy-Notice.An action of conversion cannot be maintained against a sheriff of a foreign jurisdiction for proceeding under an attachment after an adjudication in bankruptcy of the debtor, where no notice had been served upon him of the bankruptcy proceedings until after the sale and payment of the money to the plaintiff in the attachment suit.

ROGERS V. LEE MINING CO. (Circuit Court, D. Colorado.) December, 1881.

1. Attorney and Client-Purchase by Attorney pending Litigation.-When there is a pending litigation threatening a client's title to property, his attorney cannot, while acting as such, purchase the property. It is contrary to public policy to permit the purchase.

2. 1bid-Purchase by Attorney from Client-Duty of Attorney.-To sustain a sale from client to attorney, the latter must show that he has done as much to protect the client's interest as would have been done by him in the case of his client's dealing with a stranger.

3. Ibid-Ibid-Secret Trust-Bona Fide Purchasers.— When an attorney purchases from his client in his own name, but in secret trust for strangers, the latter cannot be regarded as innocent purchasers or entitled to greater rights than the attorney himself.

BOYD v. CLARK. (Circuit Court, E. D. Michigan.) Oct. 1881.

Statutory Remedy-Of Foreign State-Statute of Limitations.-Where a statute gives a right of action not known to the common law, and therein limits the time within which an action shall be brought, such limitation is operative in any other jurisdiction wherein the action is brought.

FLAGG V. THE MANHATTAN RAILWAY Co. (Circuit Court, 8. D. New York.) December 21, 1881.

Railroads-Lease of Road-Discretion of Directors t modify Rent.-Where two railway corporations have leased their property to third company at a certain rental, the directors of the three companies may afterwards modify the lease without the authority of the.stockholders, reducing the amount to be paid by the lessee, and an injunction will not be granted at the suit of stockholders to prevent such modification.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Feb. 1, 1882.]

1029. The P. C. & St. L. R'y Co. v. Matthew M. Patton, adm'r. Error to the District Court of Harrison County. J. Dunbar for plaintiff; J. M. Estep for defendant.

1030. Wesley Cameron v. W. S. Capeller, Auditor and Luke A. Staly, Treasurer of Hamilton County. Error to the District Court of Hamilton County. Yaple, Moos & Pattison and C. D. Robertson for plaintiff; Charles Evans and Goss & Peck for defendants.

1031. Jacob Pfau et al. v. The Cincinnati Ice Co. Er-. ror to the District Court of Hamilton County. Long, Kramer & Kramer for plaintiffs; Ramsey, Matthews & Matthews for defendant.

1032. Jacob Pfau et al. v. Peter Andrew. Error to the District Court of Hamilton County. Long, Kramer & Kramer for plaintiffs; Coppock & Čoppock for defendant.

1033. Jacob Pfau et al. v. Henry Adam. Error to the District Court of Hamilton County. Long, Kramer & Kramer for plaintiffs; Ramsey, Matthews & Matthews for defendant.

1034. Charles Theis v. Mary Ryan. Error to the District Court of Brown County. Loudon & King for plaintiff; White, McKnight & White for defendant.

February 16th-No. 959. J. H. Devereux et al. v. Hugh J. Jewett, Trustee, &c., et al. No. 953. Ohio ex rel. Attorney General v. William H. Vanderblt et al. Quo Warranto.

February 23d-No. 6. Shorten v. Drake et al. No. 30. Pitts, Graham & Co. v. Foglesong.

February 23d-No 794. Elias Sims et al. v. The Brooklyn Street Railroad et al.

February 24th-No. 23. Pittsburgh, Cincinnati & St. Louis R'y Co. v. Anderson. No. 24. Same v. Shuss. No. 73. Same v. McMillan.

March 1st-No. 33. Little v. Eureka Fire and Marine Insurance Co. No. 34. Roland v. Meader Furniture Company.

March 2d-No. 18. Marietta & Cincinnati Railroad Company v. Western Union Telegraph Company.

March 3d-No. 37. Phoenix Insurance Company v. Priest, adm'r, etc. No. 39. Morris et al. v. Williams. March 8th-No. 40. Crabill, ex'r v. Marsh. No. 50. City of Ironton v. Kelley and wife.

March 9th-No. 7. Dawson v. Ohio and J. B. Koch. No. 74. Ohio ex rel. Dawson et al. v. Board of Education of Wooster.

March 15-No. 114. Coppin v. The Greenlees & Ransom Company.